An Anti-Patent Patent Attorney? Oh my Gawd!

byStephan KinsellaonJuly 12, 2009

A friend of mine was asked by a patent attorney he knows how I can be a patent attorney and against IP. The assumptions behind the question are odd; here was my reply.

First, when there are tax laws, there is a need for tax lawyers. When there is cancer, we need cancer doctors. There is nothing wrong with advising people or companies as to how to navigate the positive law in society.

Second, just as having a gun is not a crime since the gun can be used for good or evil, so having a patent is not in an of itself evil–there are both legitimate and illegitimate uses of them. For example if I am sued for patent infringement I will use my patents in a countersuit. In fact most patents are held for defensive purposes–to ward off suits.

Third, it could be that being a patent lawyer has helped me to see why patent law is unjustified.

Fourth, this kind of assumption reminds me of what annoys me about criticisms by liberals and blacks of any black such as Clarence Thomas who opposes the standard liberal crap on affirmative action etc. It’s as if they think the unwilling “beneficiary” of their liberal policies should also shut up about it and toe the line. Do the advocates of IP want those most able to oppose it to be muzzled? Can only those ignorant of how IP works complain about it?

Fifth, I have yet to see a sincere or informed pro-patent opinion by a single patent attorney. The few I know who are cynics like me are resigned to it; the patent lawyers who promote the system invariably repeat the tired and pathetic arguments in favor of it. I have yet to find a single patent lawyer who promotes IP who has a sincere or serious argument in favor of it. (For more on this see There’s No Such Thing as a Free Patent, Yet Another Study Finds Patents Do Not Encourage Innovation, Patent Attorney Admission, Miracle–An Honest Patent Attorney!) I don’t mind patent attorneys doing their jobs, to put bread on the table. But when they start trying to justify their profession by repeating the bankrupt arguments of utilitarians and statists, they open themselves to criticism.

It’s simply not true that “most patents are held for defensive purposes”. A U.S. patent is, by its very definition, an exclusively offensive weapon. A patent confers to its holder the authority to prevent others from doing what is described in the patent. A patent does not, in any way shape or form, authorize its holder to do what is described in the patent. This is because doing so may substantially rely on the use of some previous patent.

I have no doubt that patent attorneys attempt to argue otherwise. Obviously patent holders (such as myself) would love a guarantee of being allowed exploit their inventions. But a patent is no such thing.

In reality, construing the enforcement of a patent as either “offensive” or “defensive” is mere semantics. In all cases, people enforce their patents because they wish to stifle their competitors.

Kinsella’s distinction does nothing to enlighten the debate on IP, and appears to be simply a rationalization for the activities of an anti-patent patent lawyer.

Ace: “It’s simply not true that “most patents are held for defensive purposes”. A U.S. patent is, by its very definition, an exclusively offensive weapon.”

Not true. It may be used in a countersuit against someone suing you for patent infringement. This is a defensive use.

“A patent confers to its holder the authority to prevent others from doing what is described in the patent. A patent does not, in any way shape or form, authorize its holder to do what is described in the patent. This is because doing so may substantially rely on the use of some previous patent.”

Yes, this is patent 101. In saying patents may be used defensively I in no way implied they give permission to practice the patent. Not directly, anyway.

“Kinsella’s distinction does nothing to enlighten the debate on IP, and appears to be simply a rationalization for the activities of an anti-patent patent lawyer. ”

The problem is your entire comment is based on simpleminded confusion about what a defensive use is.

Most of these patent lawyers are just feeding off inventors, just like invention submissiom places do. Patent are nothing more than the goverment taking your money again. If the average guy gets a patent by spending most of what he has then its infringed he cant afford to litigate. These damm lawyers 500 an hour. I know because Im in this situation. In big need to talk to someone who could help